The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Tuesday, July 19, 2005

Not my job!

Over the course of the Supreme Court career of the Associate Justice whom President Bush selects to replace Sandra Day O'Connor, that Justice will be asked to review many, many cases in which other entities — the Congress, the President, federal and state agencies, state legislatures and state courts, politicians, voters, various private organizations and individuals — have done things which that new Justice is absolutely convinced were profoundly unwise, but yet were within the ambit of those entities' respective authorities to act.

The new Justice, like those already on the Court, will almost certainly possess superb personal qualities — he or she will be smart, hard-working, patriotic, articulate, compassionate, and so forth. The new Justice will have working at his/her beck and call some of the brightest young lawyers of each generation, fiercely loyal and energetically devoted to polishing the new Justice's own thoughts and opinions into tight legal prose buttressed by legions of impressive precedents. Though others may criticize the Justice's and the Court's results or reasoning, they rarely will be able to overturn them; the Supreme Court isn't omnipotent, but one can understand how its inhabitants might sometimes fall under the illusion that it is and that they collectively are too. And the new Justice may indeed be profoundly more wise than most of the parties whose cases come before the Court.

But by far the single most important quality that the new Justice must have, if Dubya is to keep his campaign promises, is the willingness to write words like these, which Justice Thomas penned as his entire dissent in Lawrence v. Texas (internal citations omitted, emphasis and all but final brackets mine):

I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly" [as Justice Stewart wrote in 1965 in his dissent in Griswold v. Connecticut]. If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'" And, just like Justice Stewart [in Griswold], I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," or as [Justice Kennedy's majority opinion for] the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions."

If I'd been writing in his place, I'd have stated my revulsion for the Texas statute being challenged in Lawrence far, far more forcefully. "Cruel, bigoted, ugly, an anachronism of which the people of Texas and their state government ought to be ashamed of themselves for not having already repealed on their own." Merely calling that law "silly" or an unproductive way to spend law enforcement resources was inadequate — so I firmly believe as a matter of public policy and fundamental fairness. (And I'd simultaneously defend your or anyone's right to hold exactly the opposite policy views, or religious or personal views, or any combination thereof, about these issues.) But the strength of the language Justice Thomas used, or that I might instead have preferred, on this particular issue isn't what's most important about this dissent.

What's important can instead be expressed in similar but even fewer words than Justice Thomas used: I am not empowered to fix this. That's the essence of what Justice Thomas said, and it's exactly what the new Justice has to be willing to say — even when, and most especially when, the temptation to reach out and fix things is nearly overwhelming. The result will certainly, inevitably be that many things that ought to be fixed — by Congress or state legislatures or those other entities mentioned above — just won't get fixed, or may get bollixed up even further. Sometimes those entities are obviously falling down on the job, with heartbreaking or alarming or unfair results. But when the Supreme Court seizes power that doesn't belong to it, and exercises it in a way that can't be effectively checked by the voters or the other branches of government, then over the long run, not just the rule of law but our entire system of government are likely to perish.

We're not gods, the new Justice must be willing to say and believe. Because they aren't. There are good people on the Court now, and there are good people among the potential nominees for the soon-to-be-open seat on it. But none of them are gods. It's sufficient instead to hope for — and it's essential for Dubya to find — a new Justice with the courage and the wisdom to say, often, and despite results that he/she will find distasteful, stupid, unfair, reckless, bigoted, offensive, wasteful, unproductive, harsh, tragic, silly, counter-productive, and/or otherwise profoundly unwise: Sorry, but it's not my job.

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